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TV PROGRAM TRANSCRIPT

LOCATION: http://www.abc.net.au/lateline/content/ ... 422056.htm

Broadcast: 25/07/2005

Human rights lawyer discusses police killing

Reporter: Tony Jones

TONY JONES: Geoffrey Robertson QC is a leading human rights lawyer and a UN war crimes judge. He's been closely watching the Menezes case. I spoke with him in London a short time ago. Geoffrey Robertson, thanks for joining us again.

GEOFFREY ROBERTSON: Hello, Tony.

TONY JONES: We've just heard the new information on the de Menezes killing that his British visa had expired and that's in all probability why he ran from the police. What does that tell you?

GEOFFREY ROBERTSON: Well, that is obviously why he ran. Like a lot of people, a lot of Australians, they are here as overstayers with visas expired and don't want to meet police officers, particularly when they're armed and in plainclothes, and that's obviously why he ran. There is a lot more to come out and obviously it's premature to make any judgement at this stage. What happened was undoubtedly a tragedy. It may also have been a crime. There is, as we know, a right to life, which doesn't mean - it's in all of the human rights treaties and every civilised country signs up to it, which means whenever there's a killing at the hands of agents of the state, be they police officers or soldiers in Basra or whatever, there has to be a full investigation, an independent investigation, and there have to be charges brought if there is credible evidence of manslaughter. So today the Independent Police Authority in Britain has begun to investigate and it may bring charges against the police officers or, indeed, the people - the police commander who was talking down the earpiece to the what was in effect the execution squad, as it sadly turned out, and so that is being investigated. If charges are not brought, then there will be a public inquest at which the relatives of the victim will be able to cross-examine the police and if a jury brings back a finding of unlawful killing, then again that will mean in all probability a prosecution. So, at least we have the reassurance, it may not be the happiest one at the moment, but that this is being properly investigated.

TONY JONES: You mentioned execution squad there. That implies a kind of legal sanction from the state, doesn't it?

GEOFFREY ROBERTSON: Well, of course that is the $64 question at the moment - under what circumstances can the police kill a terrorist suspect and obviously the only defence in law is one of necessity. The state can only take life in an emergency if by doing so other lives are saved. The police are bound in duty to use only reasonable force and that's why at the end of the day to determine whether anybody is guilty of a crime here you have to look at all of the circumstances that prevailed at the time.

TONY JONES: Does the new element of suicide bombings, as the Police Commissioner is suggesting, actually change the legal status in the case of the de Menezes killing?

GEOFFREY ROBERTSON: Well, of course it's a new kind of threat. People talk about London going through the Blitz. Well, we all knew what the Nazis were about. We talk of the IRA bombs, which I remember very well, but that was entirely different. The IRA when attacking civilian targets usually left a message about where the bombs were or very often they became too drunk to read their own writing and the message didn't get through and appalling casualties were caused. But that was something that was understood. I think the difference between the attitude after the first lot of bombings, which of course were terrible and over 50 killed, was very stiff upper lip. There was no panic. There was no rush to a patriot act. Everyone was very pragmatic about it. Two weeks later, when the unsuccessful but eerie and quite terrifying second lot of bombings occurred with all five bombers now on the loose, I think there were jittery reactions. Certainly members of the public watched these men escape shouting, "Stop them, stop them". Nobody rugby tackled. The police acted, it would seem, in the next day in a jittery and premature way in killing what turned out to be an innocent man.

TONY JONES: Can I interrupt there --

GEOFFREY ROBERTSON: There is a sense we are treating suicide bombers as if they were aliens, as if they were people who shouldn't be approached, who shouldn't be captured, who should be killed on sight. That's plainly a wrong approach.

TONY JONES: Well, can I just ask you this. By instituting a policy of shoot to kill in these circumstances, is Britain in fact creating a de facto capital punishment for certain crimes?

GEOFFREY ROBERTSON: It would be wrong to say that the policy is shoot to kill. There's no shoot-to-kill policy at the moment. The question is when the circumstances arise that justify taking a suspect life in order to save other lives. The fact that Mr De Menezes was entirely innocent is not an overriding factor because if you can capture a suicide bomber that is an intelligence bonanza. It's counterproductive, indeed, to kill a suicide bomber because that gives these people and their perverted theology exactly what they want. They go to paradise in mid-Jihad. More importantly, it means you cannot get the intelligence you need through investigation to work out where the cell is. It also means that you can't begin and we have to - this is the great task ahead - to de-program these brainwashed people and so produce a situation where the communities in England do not produce more. For all of those reasons, you don't shoot to kill suicide bombers unless of course the evidence is clear that they're about to kill other people.

TONY JONES: How does this actually change or alter what we understand as British law, criminal law, because - you're great at hypotheticals, I know - there are few governments who would hesitate to shoot down a civilian airliner albeit packed with civilians if they thought it was going to crash deliberately into the House of Commons.

GEOFFREY ROBERTSON: Yes. These fortunately are usually hypothetical situations. Occasionally, sadly, they become real and you have to apply the law. There's no change in the law. The defence of necessity permits you to take a life if by doing so you save other lives. The defence of reasonable force enables the state to deal reasonably and that includes using guns in relation to terrorist atrocities. But, at the end of the day, and this, as I say, we've had 11 British soldiers arrested and put on manslaughter charges because it's alleged that they killed their prisoners in Iraq. You cannot, the agents of the state cannot take lives, no matter what - certainly of prisoners of war. That's been the law for centuries. So I don't think these suicide bombers change the nature of the law, change the legal principles that the police must operate under. But you of course have to have every sympathy with those at the sharp end who have to make what are often split-second decisions and the only quick way of judging them is to look at all of the circumstances.

TONY JONES: That's where we'll have to leave it. Thank you very much once again, Geoffrey Robertson, for coming to talk to us tonight.